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by Robert B. Beauchamp

October 17, 2001
all rights reserved -- On October 16, 2001, the United States Court of Appeals for the Fifth Circuit quietly issued an opinion of historical magnitude.  In United States v. Emerson, The Fifth Circuit specifically held that

"the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons . . . regardless of whether the particular individual is then actually a member of a militia."

After reading the Fifth Circuit's 80-plus page opinion and the Second Amendment itself, it occurred to me that it really shouldn't take as much intellectual horsepower as has been applied in the last fifty years to decipher the single sentence constituting the Second Amendment.  So I thought I'd undertake a little experiment notable only for its complete lack of double blind, regression analysis, scientific doublespeak.   I typed on four index cards the following words:

"A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

I borrowed four publicly schooled neighborhood kids:  two fifth graders, a sixth grader and a seventh grader.  I separated my four volunteers and gave each of them one of the cards.  I told them only that the sentence on the card was one of the Bill of Rights guaranteed by the "American Constitution" and that "arms" meant "guns" (I was pleasantly surprised that each of them had at least heard of the Constitution).  I asked each of the sequestered children to tell me what they thought the sentence on the card meant.  Only the seventh grader had any idea what a "militia" was and she thought it was "the people who blew up the building in Oklahoma."  Each of these children told me that the Second Amendment means that all people have a right to have guns, though one of the more ingenious, the sixth grader, told me that arms meant knives and other weapons besides guns.  Suitably corrected on the definition of arms, I thanked them and they gleefully went back to their skateboards and video games.

So there you have it.  It took four elementary school children ten minutes to decipher a single sentence, the meaning of which continues to perplex virtually the entire organized legal profession from the American Bar Association to the judiciary of the various states and federal courts along with the mental powerhouses at the ACLU, the Violence Policy Center and a million moms, give or take a few.

Though the idea is profoundly unnerving to liberals, for the first time a federal court (both the Emerson trial court and the appellate court) had undertaken an analysis of the meaning of the Second Amendment and unequivocally concluded that the Second Amendment really does prohibit government infringement on "the right of the people to keep and bear arms" apparently within some boundaries of reason.

Like most, I rushed through the decision, noted the Court's conclusion that notwithstanding the Second Amendment, Dr. Emerson's rights were not violated by a federal criminal statute prohibiting a person who is the subject of a family court restraining order from possessing a firearm that he or she may have legally possessed the day before.  Also, like most others, I noted that the concurring opinion by the Clinton appointee concluded that the majority's entire 60 or so page discussion of the Second Amendment was what we lawyers call "dicta," which means a lot of nice language that is not binding on other courts because it was not necessary to reach the court's ultimate conclusion.  I bought the dicta argument hook, line and sinker and I sat down to disgorge my thoughts and impressions on the legal, practical and political import of this truly groundbreaking case.  I was careful to warn that despite the eloquent linguistic and historical analysis leading to the court's conclusion that the Second Amendment is not about the rights of the states or militias but about the rights of people, we must remember that the discussion we most cared about was mere dicta not binding on other courts.

Finally, it hit me (though graduating high in my class at a well respected law school, I'd be the first to admit that head injuries from college rodeo and as a police officer sometimes slows my thinking).  The Second Amendment analysis was not dicta at all.  It was required in order to reach the court's decision.  That fact renders the Court of Appeals in Emerson more than just a massive blow to the anti-gun crowd, it is a devastating blow.

You see, Dr. Emerson was being charged with possession of firearm while subject to a family law restraining order.  The trial court dismissed the charge based on Dr. Emerson's argument that the law impermissibly infringed upon his rights protected by the Second Amendment.

The government appealed and argued that the trial court was wrong in dismissing the charges because the Second Amendment neither recognizes nor protects the right of any individual to possess a firearm unless on active duty as a member of the National Guard (a militia).  In order to determine whether or not the trial court was correct, analysis would be required to determine whether Dr. Emerson had any right protected by the Second Amendment.  If Emerson had such a right, the court would have to go further to determine whether, under the circumstances, the statute in question impermissibly infringed on that Constitutionally protected right in a way comparable to permissible infringements on other rights such as the famous analogy that free speech rights include the right to yell "FIRE!" in a crowded place or permit slander of another.

The court undertook precisely the required analysis.  The court first engaged in an unprecedented analysis of the intent and proper construction of the Second Amendment to determine whether, as an individual, Emerson had any right protected by the Second Amendment.  The court left no stone unturned in reaching the conclusion that all historical, contemporary and political evidence at the time the Second Amendment was drafted and ratified reveals no evidence of any interpretation other than that the Second Amendment was adopted solely to protect the rights of individual citizens to keep and bear personal arms for their own defense and defense of the state and the Nation.

Only after establishing that Dr. Emerson enjoyed rights protected by the Second Amendment could the court examine whether the statute in question, impermissibly infringed upon those rights.

As lawyers, we like courts to give us opinions containing "tests" by which we can measure other case and other circumstances.  The Fifth Circuit could have been more clear but it did give some guidance as to when a restriction is a lawful infringement of individual rights protected by the Second Amendment:

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. . . .  As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.

. . .

[W]e conclude that the nexus between firearm possession by the party so enjoined and the threat of lawless violence, is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party's Second Amendment right to keep and bear arms [even when there is no immediate right to appeal to another court] at least so long as the order, as here, is not so transparently invalid as to have only a frivolous pretense to validity.

Those of us who agree with the Court’s interpretation of the Second Amendment may not like the court’s conclusion that these particular circumstances justify an infringement of Dr. Emerson’s Second Amendment rights.  Yet, there is no disputing that a United States Court of Appeal has for the first time undertaken a sound analysis of the legal, historical and political precedents on which the Second Amendment is based, has concluded that the framers of our Constitution knew the difference between the “people” and the “states” and that the Second Amendment protects the former, not the latter. 

Moreover, like tobacco companies, anti-gun activists have lost their ability to contend that no court has ever diverged from the oft repeated but erroneous interpretation of the U.S. Supreme Court's ruling in United States v. Miller in which the court noted the absence of evidence that a sawed off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia" and whether or not the individual defendant therefore had an individual right protected by the Second Amendment "to keep and bear such an instrument."  Lacking such evidence, the Supreme Court remanded the case to the trial court to determine whether such an "instrument" did bear some reasonable relationship to the preservation or efficiency of a well regulated militia in which case it is clear the individual's right to possess it would have been protected by the Second Amendment.

But the anti-gun crowd will not go quietly into that good night.  The spin has already started in a world of twenty-four hour news cycles dominated by liberal media who, like baby birds, their mouths agape, eagerly and uncritically air whatever anti-gun groups feed them.  Most news outlets have already headlined the ruling with phrases such as: "Appeals court: Domestic violence restraining order is reason to restrict gun rights" (Associated Press); "Texas doctor's gun rights curbed by appeals court" (Houston Chronicle); and "Ruling: Government can limit gun rights in domestic violence cases" (Dallas Morning News).

The Violence Policy Center issued a press release the same day the opinion was released claiming victory:

"...the judges rejected the argument that the Second Amendment guarantees domestic abusers an individual right to keep and bear arms."

Like most anti-gun propaganda, the VPC's release omitted reference to an outright rejection of the VPC's position that the Second Amendment does not guaranty an individual's right to keep and bear personal arms -- and misstated the facts. Dr. Emerson has never been convicted of any abuse and, in fact, when his wife later accused him of aggravated assault and child endangerment, it took three days to try the case and less than an hour for the jury of nine women and three men to acquit Dr. Emerson.

Even the obviously anti-gun judge Robert Parker who concurred in the Fifth Circuit's result but not its Second Amendment analysis, was not above both preposterous hyperbole and ad hominem attacks on gun owners and their rights:  "whatever the scope of the claimed Second Amendment right, no responsible individual or organization would suggest that it would protect Emerson's possession of the other guns found in his military-style arsenal" consisting of a second identical Beretta nine-millimeter, "a semi-automatic M-1 carbine, an SKS assault rifle with bayonet, and a semi-automatic M-14 assault rifle."  Judge Parker's description of the quite legal but very scary sounding weapons could have been written by the VPC.  Judge Parker doesn't tell us that the government itself dropped all counts for possession of the three scary rifles and the other scary handgun that "no responsible individual or organization would suggest" are protected by the Second Amendment.

More irresponsible is judge Parker's subsequent statement:

"[T]he evidence shows that Emerson pointed the Beretta at his wife and daughter when the two went to his office to retrieve an insurance payment. When his wife moved to retrieve her shoes, Emerson cocked the hammer and made ready to fire. Emerson's instability and threatening conduct also manifested itself in comments to his office staff and the police. Emerson told an employee that he had an AK-47 and in the same breath that he planned to pay a visit to his wife's boyfriend. To a police officer he said that if any of his wife's friends were to set foot on his property they would "be found dead in the parking lot."

Judge Parker leaves us with the inference that Dr. Emerson is, indeed, a very dangerous man.  What judge Parker doesn't tell us is that before he drafted his opinion asserting these allegations as if they were facts, he already knew that a jury of nine women and three men had acquitted Dr. Emerson of the charges judge Parker repeats as facts.

Judge Parker's vitriol demonstrates that we live in a Nation in which we must not only be constantly vigilant against bias of the media, but that even the judiciary is not above manipulating language to further personal beliefs.  Indeed, as all familiar with the Second Amendment debate are aware, the judiciary has for years uncritically adopted and repeated the opinion that the "the people" used in the Second Amendment, though readily comprehensible to schoolchildren, does not mean "the people" at all.  Rather, it means "the states" or "members of a militia" or some other entity.  It means little to judges that such interpretation requires the adoption of an assumption that our Constitution's framers were so linguistically naďve as to be incapable of distinguishing between “the people” and “the states” in the Bill of Rights from one sentence to the next. 

We also live in a Nation governed by politicians who, in the words of Will Rogers, have forgotten who the hired hands are.  They routinely adopt legal enactments so far removed from the enumerated powers contemplated by the Constitution's framers as to render the concept of enumerated powers meaningless.  To such politicians any theory of the Second Amendment that promotes as one of its purposes a constraint on oppressive government is anathema.  Indeed such interpretation of the Second Amendment is so offensive to liberals that it is pejoratively labeled and dismissed as the "insurrectionist theory."

During recent confirmation hearings in which John Ashcroft quoted a passage by some historical figure articulating the "insurrectionist view" of the Second Amendment, Senator Kennedy, in a fit of near hysteria, demanded that Mr. Ashcroft apologize for insinuating through such quotation that the government could become oppressive.  Though I don't recall the original author of the statement quoted, it might well have been Hubert Humphrey who said:

"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. . . .  But the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible." 

It could as easily have been said two hundred years earlier by someone intimately involved in the debates over the wording and scope of the Second Amendment.  Tench Coxe, for example, noted in 1789:

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms."

Dr. Emerson will now likely have a trial.  He will have no right to petition the Supreme Court for further review on the Second Amendment issue until the conclusion of the trial.  Whatever the outcome, the extensive historical analysis undertaken by both the District Court and the Fifth Circuit as to the original intent and meaning of the Second Amendment leads to the irrefutable conclusion that both courts got it right - "the right of the people to keep and bear arms shall not be infringed" means what it says. 

The next battle is for a wider adoption of the conclusion reached by the Fifth Circuit.  In addition, the Second Amendment was originally intended only as a restriction on the powers of the federal government.  Following the adoption of the Fourteenth Amendment at the conclusion of the Civil War, the Supreme Court adopted a policy of "incorporation" on an amendment by amendment basis.  The Second Amendment has never been "incorporated" under the Fourteenth Amendment so as to restrict the infringement by states of rights protected by the Second Amendment, though the debates over ratification of the Fourteenth Amendment and subsequent court decisions indicate that the First Eight Amendments of the Bill of Rights were clearly intended to be applicable to the states under the Fourteenth Amendment.

Ironically, Emerson has come along at a time in American history in which there is a resurgence of patriotism and a commitment to both national and personal security.  Simultaneously, liberalism is in decline, at least for the moment.  The decision cannot help but go a long way toward bringing the simmering issue of the scope of the Second Amendment to a head at a time when gun sales are at record highs and crime is at record lows.  Given that those political subdivisions with the most prohibitive gun laws also have the highest violent crime rates, perhaps the framers of our great Constitution not only knew the difference between "the people" and "the states," perhaps, in fact, they were smarter than the current crop of liberal politicians, celebrities and others who seldom step beyond the protection of those who bear arms on their behalf while arguing that the rest of us are in no need of such protection.

The Fifth Circuit's opinion is published electronically at:

Robert B. Beauchamp
The Beauchamp Firm
a law corporation
1301 Dove Street
Suite 950
Newport Beach, California 92660
Telephone: 949-660-0010
Telecopier: 949-660-0690

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